Thursday, February 22, 2018

What is Originalism circa 2018?

By Eric Segall

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.

I began my talk (which Professor Chris Green graciously and fairly commented on) addressing a question Professor Michael McConnell had raised earlier in the day: what role should originalism play in hard Supreme Court cases implicating contested moral, political, and legal values? I mentioned that given Trump's promise to nominate "originalist" judges, this question was more important than ever.

My answer to McConnell's question was that, if I had my way, the Court would not strike down a law unless the plaintiff could show by clear and convincing evidence that the challenged statute is at an irreconcilable variance with either clear constitutional text or universally accepted agreements about the history behind the text. I then sheepishly announced to the group that my view made me a true originalist. That snippet didn't go over very well.

I identified a number of well-known originalsts in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

I pointed to Professor Tom Colby, also present, and said that he (along with Professor Peter Smith) had written a series of articles making a persuasive case that the so-called "New Originalism" is indistinguishable from living constitutionalism in most respects, as Steve Smith has also observed many times. Mike Ramsey responded that the New Originalism may well be a minority view among modern originalists, which I think supports my theory that we really don't know what originalism is any more. Tongue-in-cheek (a bit), I asked whether anyone thought Balkin, a self-proclaimed progressive "originalist" would ever be nominated by this Administration, making the point that it is conservatism, not originalism, driving the nominations.

I also pointed out that Barnett had written a persuasive piece years ago arguing that Justice Scalia was not an originalist, yet most people still claim that he was. Trump, of course, has said that he would only appoint originalists in Scalia's "mold."  Barnett addressed that conundrum by telling the group that when he wrote that article he was in a foul mood because of Scalia's vote in Gonzalez, v. Raich (commerce clause allows Congress to regulate homegrown, non-commercial marijuana) which Barnett had argued and lost.  Importantly though, Barnett did not say he was wrong when he wrote the piece (though he has not repeated the charge since), which led me to ask again if anyone in the room could please tell me what originalism is, given all the different types of people who claim the originalist mantle (and those who don't).

To say that question fell flat would be an understatement. The overriding response was that these originalist folks and others not present had a lot more in common than I was suggesting, although it was a bit fuzzy what exactly that was. I assume it has something to do with the idea that the meaning of the constitutional text is fixed at the time of ratification and should play a dominant role in constitutional interpretation. The problem with that notion is that Baude, Sachs, and Balkin all believe that a judge who says that the original meaning of the 14th Amendment allows him to update notions of equality and liberty as time goes on, just as Justice Kennedy wrote in Lawrence and Obergefell, is a judge acting in a way consistent with an originalist approach (even if the judge is wrong about what the 14th Amendment actually requires). But I responded that if it is "originalist" to say that judges should not use originalism, then orginalism and non-originalism are the same thing. Baude and Sach, among others, then argued that coming to that interpretation about the 14th Amendment through originalism (even if wrong) is different than coming to it some other way. I said that whether judges apply the 14th Amendment through a living constitutionalist method because that is what the original meaning tells us judges ought to do, or because it just makes sense to interpret the Amendment that way, has no relevance to real cases. Either way, judges will decide cases based on modern values, not the values of 1868.

An originalist judge in 2018 could believe that she should aggressively review economic legislation, or maybe even all legislation (Barnett's  and Bernick's view), or be quite (or at least more) deferential to most legislation (McConnell and maybe Rappaport and Lash). An originalist judge could also use the vague phrases of the Constitution to update notions of liberty, speech, property, due process, etc.,  (Baude, Sachs, Balkin), or shouldn't update the Constitution that way and only use the original methods embraced by the framers (Rappaport and McGinnis). And there are many other theories of originalism currently adopted by or advocated for by many other legal scholars that have some elements of these theories, but deny others.

I learned a lot at this conference, and the company was wonderful and the papers excellent. But I did not learn what originalism is circa 2018. That is probably not the fault of the people in the room, however, because the question simply cannot be satisfactorily answered by anyone, much less the President or his special Federalist Society judicial nomination guru Leonard Leo, who are committed to nominating "originalist" judges, whatever the heck that means.


Shag from Brookline said...

Perhaps "what originalism is circa 2018" might be considered/compared with what Christianity is circa 2018. The Christianity umbrella includes many variations/versions. Just as Christianity circles the wagons when Christianity is questioned, originalists of various stripes do likewise when originalism is challenged. Perhaps it's a matter of faith? Was the Conference in any sense comparable to the Tower of Babel, even though all spoke English?

Joe said...

Originalism discussion with Eric Segall as the bull in the china shop sounds like Shag's version of heaven.

Shag from Brookline said...

"China shop" originalism is a lot of bull. "Heaven" is a matter of faith, as is originalism.

Query: Was St. Peter aware of Randy Barnett's view of the late Justice Scalia as not an originalist in determining whether to permit entry through the Pearly Gates?

Joe said...

It is usually noted that Scalia and RBG were great friends.

I wonder if Scalia and Breyer bonded some over their children both being members of the clergy though of different Christian faiths [Breyer's daughter Chloe wrote a book about her experiences.]

Shag from Brookline said...

Over at the Originalism Blog, Mike (I'm not Rappaport) Ramsey posts on Eric's post here, providing this "editorial" comment:

"Thanks to Professor Segall for his kind words about the conference (and for his outstanding contribution to it). I'll say in very brief response (1) I don't know that it's a problem that originalism is more a family of related approaches rather than a single unified approach; and (2) while I do think originalism is a family, I also think it is unified by a set of core commitments, and can appear more fragmented when one focuses on the more novel theories and the more difficult constitutional provisions."

"Family" originalism sounds comforting. But Ramsey might elucidate as to such "set of core commitments" that unifies originalism in a family way. Is it faith? is it libertarianism? Is it conservatism in the political sense? By example, what are the differences between Ramsey as an originalist and Mike (I'm not Ramsey) Rappaport) as an originalist?

John Barron said...

As the old saying goes, the problem w/Christianity is Christians. The same can be said for originalists: You can't choose your family.

And to be honest, we do have a rogue's gallery in the closet. Follow Ranty Barnett on Twitter, and you learn that he is a full-throated conductor on the Trump Train. His originalism is a coarse reflection of his wet dreams of anarchy. Then, sidle on over to Liberty and Law, and you see that McGinnis and the two Mikes are papists in the Clarence Thomas mold, promulgating a RW theocrat-friendly form of originalism. Scalia was elevated to demigod status, despite his Trumpian faithfulness to his originalism on the bench. And Bork and Meese were--well, to put it charitably--pieces of work.

But the core of originalism remains undisturbed. It is grounded in reason and human nature, which have proven to be immutable. Power corrupts, and absolute power corrupts absolutely--which is why the Framers and the sources they relied on sought to limit the discretion of judges as much as possible. Binding the judiciary to the meaning of the text they are interpreting is an indispensible tool in this regard.

Its origin lies in Hobbes' social contract. And as COTUS is a contract (technically, a treaty between 13 co-sovereigns), it really ought to be interpreted as one. "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." Marbury. A judge must always “make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act." Heydon's Case [1584] 76 ER 637 (K.B.). There is no reason--and no warrant--for treating COTUS any different from a provision of the Internal Revenue Code.

During ES's symposium this week, Evan Bernick described originalism as the worst model possible, except for all the others. And therein lies the core problem with alternative theories: there are no non-risible ones. ES actually trotted out the absurd whine that the Framers were slavers. And though I know I won't get a cogent answer, I'll ask the question anyway: How has human nature changed since the days of Aristotle?

Women are no longer chattels, and we no longer permit slavery. But COTUS has changed with the times, mooting that objection.

The debate over originalism distills neatly to one question: Would you rather be ruled by the cold, dead text of COTUS, or the capricious dictates of a bribe-taking federal judge? Non-originalists seem to have no problem with the fact that under their legal system, all "law" is ad hoc and ex post facto. Judges are, in a very real sense, our absolute rulers. Raoul Berger called it a prescription for judocracy--a statement that has not been refuted in over 40 years.

And I ask the obvious question, which no opponent of originalism will dare to address: Who in their right mind would ever agree to that arrangement?

Shag from Brookline said...

The debate within originalism does not distill, raising many differences and many questions, revealing the core problem of originalism: faith.

By the way, the varieties of originalism have chosen and make up the "family" of originalism that Ramsey referred to. What originalist can claim being born into that "family." Most seem to be "born again" originalists. Now that's faith.

John Barron said...

Unfortunately, there is no originalist treehouse. Anyone who wants to call herself an originalist can do so. Even ELENA KAGAN.

As you know, I'm an unabashed originalist. Knowing that you are as evasive as Hillary Clinton when caught in an indisputable contradiction,, I will ask you a third question that I know you aren't man enough to answer: What am I taking on faith?

Please be specific.

Shag from Brookline said...

Is an "unabashed" originalist the equivalent of 2nd A absolutist? Maybe if there were an originalist treehouse, there might be more common sap to constitute a core belief. This brings to mind Joyce Kilmer's "Trees," which closes with "But only God can make a tree" that brings us back to faith. Alas, John, you may be the out-and-out outlier of all originalists, outside of that big tent of originalism on display at the Originalism Blog [which doesn't accommodate comments] with its occasional displays of intra-originalism family feuds, all in search of the Holy Grail of constitutional interpretation/construction, reminding me at times of Monty Python. You, John, put your faith in Bork, whose version of originalism is long passe. [Note: Bork brings back memories of Nixon, a precursor of Trump.] By the way, Sen. Joe McCarthy was "unabashed." So was Roy Cohn. So is Donald Trump. Do you have a fourth question? Regardless, I shall take the fifth.